Section 377 IPC was enacted in 1860 by British colonial rulers in the heyday of Victorian morality. It punishes inter alia sexual intercourses between same sex persons with life imprisonment or rigorous or simple imprisonment up to 10 years. After 1967,homosexual acts between two consenting adults in private are no longer an offence in England. Homosexuality has been decriminalised in several countries of Asia,Africa and South America. The US Supreme Court in 2003 ruled in Lawrence vs Texas that criminalisation of homosexuality between consenting adults was unconstitutional because it violated their fundamental rights of liberty and privacy. Courts in other jurisdictions namely,Canada,Australia,South Africa,Fiji and Nepal,as also the European Court of Human Rights in Strasbourg,have invalidated laws criminalising sexual intercourse between same sex adults. Despite the above trend and the 172nd Report of our Law Commission submitted in 2000 favouring abolition of Section 377 this monstrous provision continued to remain on the statute.
Fortunately the Delhi High Court in its recent landmark judgment after a thorough and excellent analysis of the judgments of various courts and the legal and medical literature on the subject has ruled as follows: Section 377 insofar it criminalises consensual sexual acts of adults above 18 years of age in private is violative of the fundamental rights guaranteed by Articles 21 (personal liberty) and Articles 14 and 15 (non-discrimination). The High Court has not struck down Section 377. It has expressly stated that Section 377 will continue to govern non-consensual sex involving minors.
The legal merits of the judgment may be debated. However,to attack the judgment as an assault on the culture and fabric of Indian society betrays a narrow and sick mentality. And for Heavens sake do not bring religion into the matter. What may be regarded as sinful by some religious leaders,is not necessarily a crime. For example,contraception is prohibited by certain religions and considered sinful. But it is a far cry to proscribe that activity as a punishable crime.
The Delhi High Court judgment has liberated persons in the judiciary,and in the fields of law,literature,science and other disciplines from the stigma of criminality and immorality solely because of their sexual orientation. The real merit of the judgment lies in its recognition that intimacies,privacies and autonomies of human life and the right of an individual to make choices,which does not harm or infringe the rights of other persons,cannot be criminalised. The judgment gives effect to the value of inclusiveness and highlights a vital fact that where society can display inclusiveness and understanding,all persons can be assured of a life of dignity and non-discrimination. It is hoped that this progressive and enlightened judgment is accepted by the State.
